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HomeMy WebLinkAbout90-574 MiccoDear Mr. Micco: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1810 ADVICE OF COUNSEL July 17, 1990 Mr. John A. Micco 90 -574 Lackawanna Trail School District R.D. #1 Factoryville, PA 18419 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Son, Employment by General Contractor to School District. This responds to your letters of June 7 and June 11, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a school director when his son would be employed as a laborer by a general contractor performing a construction and renovation project for the school district. Facts: You are the superintendent of the Lackawanna Trail School District which is currently engaged in a constructioy and renovation project at an elementary school. The project was advertised and bid with the award being made to the lowest bidder on November 17, 1989, which action is reflected in the minutes of that meeting. The seven elected school directors voted on the matter but you as superintendent did not since you have no vote. On June 1, 1990 your son who is college student majoring in architectural engineering was offered a laborer position with the general contractor of the project for the remainder of the summer. As superintendent you have no supervisory duties or responsibility for the payment of invoices relative to the project, the construction of which is supervised by the district architect and a clerk of the works who have been hired by the school directors. All invoices are sent directly to the architect by the construction company who verifies the work completion with the clerk of works and forwards the signed payment request to the district school manager who in turn presents the bills to the board for approval and payment. You inquire as to whether a conflict would exist if your son would accept summer employment with the general contractor as a Mr. John A. Micco Page 2 laborer. In addition, if a conflict exists, you inquire as to whether your son would be able to work for the same contactor at a non affiliated location. Discussion: As Superintendent for Lackawanna Trail School District, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of, the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or" position of public employment. Mr. John A. Micco Page 3 "Immediate family." A parent, spouse, child, brother or sister. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions -of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. (j) Where voting conflicts are note otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a. matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided, herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as / Mr. John A. Micco Page 4 a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has- abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. Under Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of office to obtain a private pecuniary benefit for himself, a member of his immediate family or business with which he or a member of his immediate family is associated. Section 3(a) of the Ethics Law does not preclude your son from obtaining employment with a general contractor who would be engaged a construction renovation project for the school district. Yerusalim, Opinion 89 -003. However, since your son is a member of your immediate family as that term is defined under the Ethics Law and since your son is an employee of the general contractor, you could not use the authority of office as a means of obtaining that employment for your son. It is not suggested that you have taken such action but the/above again is merely set forth to provide a complete response to your inquiry. In addition, since the general contractor is a business with which a member of your immediate family is associated, you could not participate in any matter involving the general contractor. Yerusalim, supra. In this regard, you have noted that you neither have a vote nor any supervisory duties or responsibilities for the payment of invoices as to the construction which is supervised by the district architect and clerk of works. Therefore, Section 3(a) of the Ethics Law would not prohibit being son from eing employed by the general contractor. However, you could not participate in any matters that would directly or indirectly result in a private pecuniary benefit to the contractor and if such a situation would arise you must follow the abstention requirements of Section 3(j) noted above. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. SpecigXcally not addressed herein is the applicability of the respective School Code. Mr. John A. Micco Page 5 Conclusion: As Superintendent for Lackawanna Trail School District, you are a public official subject to the provisions of the Ethics Law. The Ethics Law would not prohibit your sort from obtaining a position of summer employment with a general contractor who is engaged in a construction /renovation project for the school district. However, you could not use the authority of office to obtain a private pecuniary benefit for your son or the business with which your son who is a member of your immediate family is .associated. If applicable, the requirements of Section 3(j) must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the/ full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dop o Chief Counsel